Possible wider implications of Reggae Reggae sauce IP rights clash

In a recent high profile court battle, Dragons’ Den victor Levi Roots defended his right to sole ownership of the recipe for his successful spicy sauce brand. But did his evidence and the verdict create potential problems even though the challenger failed? Catherine Lee reports.

In 2007, Levi Roots appeared on the BBC program Dragon’s Den to pitch for an investment in his Reggae Reggae Sauce product. During his pitch, Mr Roots stated that for ’15 years he had been marketing the sauce at the Notting Hill Carnival’ and that it was made from a secret recipe handed down by his grandmother. Mr Roots secured £50,000 in investments from Peter Jones and Richard Farleigh. It was not long before Mr Roots’ Reggae Reggae Sauce secured high volumes of sales in UK supermarkets and Mr Roots was hailed as one of the most successful contestants on Dragon’s Den.

In late 2011, Mr Roots had to defend two claims against his Reggae Reggae Sauce business in the High Court. First, chef Tony Bailey and investor Sylvester Williams claimed that Mr Levi cut them out of a valid contract to launch the sauce together before Mr Roots appeared on Dragon’s Den. Second, Mr Bailey claimed that it was his recipe which was the basis of the Reggae Reggae Sauce and accordingly that Mr Levi breached a duty of confidence owed to him. Judge Pelling QC dismissed both claims on the grounds that Mr Bailey (and Mr Williams) were unable to produce persuasive evidence to support the claims1.

From an advertising and labelling law perspective, the case is interesting for the startling admissions made by Mr Levi during cross examination. The label on the back of the Reggae Reggae Sauce bottle repeats the claims Mr Levi made during his pitch on Dragon’s Den:

‘Our family in Jamaica have been blending home-made Jerk/Barbeque sauce since way back, and for years it’s been the taste of London’s Notting Hill Carnival.

It’s still a secret entrusted to me by my grandmother, but now the treasure has been bottled so I can share Reggae Reggae Sauce with you all! You can use it as a marinade for flavoursome jerk/BBQ chicken or with other meat/vegetables … or try a generous splash on the side of almost anything … or when cooking to give your dishes a hint of warm Jamaican sunshine!It even makes a perfect dip.Go on … Tune into the flavours and put some music in your food.One Love’(emphasis in original)

When asked whether the first paragraph from the label quoted above was true, Mr Roots admitted:

‘No, that’s not true. It’s a marketing ploy. When I was trying to market the sauce, I thought of every conceivable way that I was connected with music and the Notting Hill Carnival. I cooked all that in a bag together and tried to make a story about it’.

When asked whether the Reggae Reggae Sauce was made from his grandmother’s secret recipe, Mr Levi also admitted that this was untrue:

‘My way of trying to market the sauce when I started out was to put in all my experience with people in my life and my family. I was trying to create the flavour that my grandmother used to cook for me’.

Commentators on the case have suggested that these admissions place Mr Roots in some difficulty as regards the claims made on the packaging for his product about the origin of the recipe.

These claims do not feature on the Reggae Reggae website and if their only use has been in the context of packaging, then Mr Roots will not have issues as regards the Advertising Standards Authority ('ASA'). This is because the CAP Code which the ASA administers does not cover labelling.

This is not the end of the regulatory story potentially, however, as legal controls such as those contained in the Consumer Protection from Unfair Trading Regulations 2008 ('CPRs') do impact on misleading advertising or product descriptions in whatever medium they may appear, including packaging.

One key issue in this context will be, however, whether the allegedly misleading statement about the origin of the recipe would in reality 'cause the average consumer to take a transactional decision he would not have taken otherwise' (CPRs para 5 (2) (b)).

Roots may also argue that his claims are obvious exaggerations that the average consumer is unlikely to take literally. As such, he might say, he is protected by Para 2 (6) of the CPRs. This provides (although apparently only in the context of vulnerable consumers so query its relevance here) that determinations as to the effect of a commercial practice on the average consumer shall be 'without prejudice to the common and legitimate advertising practice of making exaggerated statements which are not meant to be taken literally.'

Why this matters:

At the time of writing no reports have been spotted of any investigation by trading standards as to the possibility of a breach of the CPRs, and it may well be that in context, any official that has considered the position will have taken the view that the case on the CPRs is not sufficiently clear cut to warrant further action.

Be that as it may, however, the case underlines the need for care to be taken with any reference to a product's origins as one can never tell when a "little white lie" might turn round and bite.